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Wednesday, March 18, 2015

On Freebies and Election Manifestos

[Guest Post: Vasujith Ram]

AAP’s
election manifesto made a host of promises: Lakhs of CCTVs for women’s
safety [see here],
Wi-Fi in all public places, 20, 000 Litres of free water every month, reduction
of electricity bills by half, among others. Both before and after the winning
mandate for AAP, sections of the media, civil society and political rivals
quested the financial
feasibility of the poll promises (for example, see here,
here
and here).

Curiously missing in the debate is the discussion of the
newly inserted Part
VIII of the Model Code of Conduct (MCC). Part VIII reads:“(i)
The election manifesto shall not contain anything repugnant to the ideals and
principles enshrined in the constitution and further that it shall be
consistent with the letter and spirit of other provisions of Model Code of
Conduct.(ii)
The Directive Principles of state policy enshrined in the constitution enjoin
upon the state to frame various welfare measures for the citizens and therefore
there can be no objection to the promise of such welfare measures in election
manifestos. However, political parties should avoid making those promises
which are likely to vitiate the purity of the election process or exert undue
influence on the voters in exercising their franchise.(iii)
In the interest of transparency, level playing field and credibility of
promises, it is expected that manifestos also reflect the rationale for
the promises and broadly indicate the ways and means to meet the financial
requirements for it. Trust of voters should be sought only on those
promises which are possible to be fulfilled.” [emphasis
mine]

There is nomention of the financial requirements or the ways and
means to meet the promises in the AAP manifesto. In fact, it is the same case with
the Congress manifesto and the BJP manifesto (titled “vision
document”) as well.

Part VIII of the MCC
was inserted following the judgment in Subramaniam Balaji v State of
Tamil Nadu.
The case arose out of a decision of the Madras High
Court with respect to distribution of freebies by the political parties. The
Supreme Court opined that promises in an election manifesto cannot be characterized
as a “corrupt practice” under S. 123 of the Representation of the People Act,
and that matters of state policy cannot be entered into by the Courts. It
however directed the Election Commission (EC) to frame guidelines to maintain
the purity of the election process. The EC, after consultation with various
parties released a draft version on 31 January 2014 and a final version of Part
VIII on 19 February 2014.

In response to my RTI application, the ECI supplied to me (Vide
letter No. 4/RTI/2015-CC/444) the minutes of the meeting held on 12 August 2013
(the meeting where the framework for election manifestos were first discussed,
in pursuance of the Supreme Court’s judgment) and the responses of the various
parties in the meeting. Only 1 out of the 6 national parties and 9 out of the
31 state parties suggested or agreed that some guidelines for election
manifestos need to be framed. None of the national parties and only 7 of the
state parties suggested or agreed there is a need for a separate framework for
ensuring compliance of guidelines. The rest of the parties mostly opined that
there should be no intervention. Post the meeting, the ECI framed draft
guidelines (the text is similar to the final guidelines adopted) and sent it to
the parties for their views. Only four parties – BJP, INC, CPI(M) and SDF
responded. Of these, the BJP unequivocally stated that the party is not favour
of any guidelines, and the INC objected to Clause 3, where the party is
expected to broadly indicate ways of meeting financial requirements. The other
two parties stated broadly that they do not have any objections.

In his book “The Undocumented Wonder: The Great
Indian Elections”, former Chief Election Commissioner
Dr. S. Y. Quraishi states the MCC “is not a creation of any statute, but the
result of a consensus among political parties.
“ The above discussion clearly shows that there was no ‘consensus’ among the
political parties, at least with respect to Part VIII of the MCC.

A response to my RTI application has revealed that no notice has been issued (as of 2
February 2015) for violation of Part VIII of the Model Code of Conduct (EC: No.
4/RTI/2015-CC&BE/65). Apart from the
General Elections to the Lok Sabha in 2014, elections have been conducted for
the Assemblies in Maharashtra, Haryana, J &K as well in Delhi post the
addition of Part VIII.As one of the Editors of this blog suggested, this
non-issuance of notice (and absence of any public objection) is perhaps due to
clause (iii) of Part VIII, which merely states, “it is expected that manifestos also reflect…”. It may also be due to the lack of
consensus with which this Part was added.

Some clarity is also needed with respect to the nature
and scope of Part VIII: Does it extend to promises of leaders on behalf of
parties (for example, while AAP’s manifesto merely promised CCTVs in public
spaces, Kejriwal in an interview stated that 15 Lakh CCTVs in total would be
installed)? Does it extend to documents in the nature of “vision documents”
(with no real distinction from a manifesto)? Textually, Part VIII only states
that “Political Parties and Candidates while releasing election manifestos… shall adhere to the following guidelines”.

This debate can also be placed in the wider deliberation regarding
the efficacy of the MCC in its present form. In favour of the authority of the
MCC, Dr. Quiraishi in his book argues that the lack of statutory status does
not diminish the effectiveness of the MCC, since any EC notice for violation
attracts severe condemnation from society. In a
different context, Dr. Quraishi also observes that “the Commission has not had
to exercise this power [under Para 16A of the Symbols Order] … and the credit …
goes to the political parties as a class who have always respected the Code
[MCC]” (pp. 253). So far, the experience with Part VIII of the code has shown
otherwise.

Directing that the EC should take up the task of framing guidelines
immediately “owing to its utmost importance”, the Supreme Court had also noted
that the EC has been “issuing instructions” as per the MCC “to see that that
the purity of the election process is not vitiated”. Little has been done so
far. Alongside directions to the EC, the Apex Court also recorded the need for
a legislation in the field. In response to Unstarred Question no. 2272 in the
Rajya Sabha, the then Law Minister Kapil Sibal (on 30.08.2013) stated there is
no such proposal pending before the Government. Even the Law Commission in its
latest 255th report on electoral reforms makes no observations on
this issue.

[Vasujith Ram is a student of the National University of
Juridical Sciences, Kolkata]

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